Corporate Personhood & the 2nd Amendment

Intrepid reader and commenter Donald Pays (I don't pay him enough!) left this comment on my last post:

The freedoms in the Bill of Rights are freedoms to individuals, not to organized groups of people.

I have pointed out before that this is nonsense as far as the law is concerned. Corporations both private and public have enjoyed rights under the Constitution from the beginnings of constitutional law. Churches can own property and make contracts.

I point out now that the last amendment in the Bill of Rights is explicitly designed to protect the rights of corporate bodies. From ePublius:

Article [X.]: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The 10^th Amendment explicitly recognizes powers that belong to "the states" or "to the people". If "the states" aren't "organized groups of people", I cannot guess what they are. It has been rather difficult to determine exactly what powers are reserved by the states. In U.S. Term Limits v. Thornton (1995), the Court ruled that the states reserve only such powers as they enjoyed before the Constitution was ratified. Justice Thomas disagreed, reading the 10^th in a more natural way to mean that the states reserve all powers not explicitly granted to the Federal Government or denied to the states. Either way, it is clear that the states as corporate bodies have rights protected in the Bill of Rights.

But let us for a moment consider Mr. Pays' view as it would apply to the Second Amendment.

Article [II.] A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Most Americans who have bothered to read those words think that it protects the rights of individuals to own, possess, and carry firearms. Gun control advocates have argued to the contrary that it protects only the power of states to organize militias and, perhaps, the right of individual citizens to keep and bear arms for the purpose of membership in a militia.

In short, the only argument against a constitutional right of individuals to possess and carry firearms requires that we read the Second Amendment as a corporate right rather than an individual right. If Donald were correct that "The freedoms in the Bill of Rights are freedoms to individuals, not to organized groups of people," then that argument is refuted. It would not be necessary even to consider the legislative record or the history of the legal terms in the amendment. The 2^nd Amendment could be nothing other than a guarantee of the rights to individuals to own guns.

In DC v. Heller (2008) the Court ruled that the 2^nd Amendment

protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self- defense within the home. The Court based its holding on the text of the Second Amendment, as well as applicable language in state constitutions adopted soon after the Second Amendment.

I would add that Scalia delved into the relevant language in English law and history to make an overwhelming case for the majority's interpretation. That said, the majority never imagined that the 2^nd Amendment could not have been a grant to "organized groups of people", i.e., the states. The dissenters explicit argued that it was only a corporate and not at all an individual right.

I think that the Court was clearly right in Heller. If Donald and other critics of corporate personhood are correct then the only contrary argument, that the 2^nd Amendment does not protect individual rights to own working guns, is not even wrong. It is incoherent. I would never go that far. Those who refuse to acknowledge the obvious legal fact of corporate personhood have already gone that far. I thought it germane to point that out.

Comments

[Bill Fleming]

Couple of thoughts, KB. First, it appears you may be confusing "rights" with "powers."

And second, you are perhaps confusing natural rights with those created by legal means.

I believe those are both important distinctions, and most likely what Mr. Pay was talking about.

Organized groups of people have no intrinsic rights and/or powers, only those as agreed upon by the organizers, and even then only if they do not infringe on the natural rights of the people. Thus the language "or the people" in the 10th Amendment.

Not positive that's what Mr. Pay meant, but that's my guess.

[caheidelberger]

I'll happily trade a loss to the NRA on Second Amendment arguments for stripping corporations of the legal fiction of personhood.

I will grant that the 10th Amendment recognizes that the corporate body of a state may have powers. But that alone does not prove that corporations have or should have the rights of personhood. And state powers appear to differ from individual rights. For instance, an individual can shout "Jesus sucks!" but the state cannot, right?

[Ken Blanchard]

Cory: then you can't sue Exxon. How happy are you about that? You'd have to hunt down every single guy and determine his or her exact liability before you can begin to collect on a disaster. Oh, and the New York Times loses its first amendment protection along with the Unions and the Sierra club. Great work!

Bill: In this context, guaranteed powers and rights are the same thing. No, I am not confusing corporate with natural rights. Once again, corporations are artificial, not natural bodies. However, a corporation exists precisely when rights and obligations are recognized as belonging to a corporate person. Therefore, corporations have rights by definition. I have shown above that corporate bodies have rights under the 2nd and 10th amendments. So the question is not whether corporations have rights or whether they have natural rights. The question is which corporations have which CONSTITUTIONAL rights.

[Bill Fleming]

I disagree that "rights" and "powers" are the same thing, or even synonyms, KB. A "power" in my estimation is in fact a legally recognized means of limiting, abridging or even removing a "right." So if anything, the two words are often times antonyms. Words, matter. I'm sure, if the Founders had meant "rights" in the 10th Amendment they would have written that way.

I would argue that Corporations have NO constitutional rights, only powers... (i.e. the ability to limit an individual's natural rights.)

[Bill Fleming]

As per above...
http://www.capitalismmagazine.com/culture/philosophy/2916-power-vs-rights.html

[Ken Blanchard]

Bill: if a corporate body has a "power" under the Constitution, then it has the "right" to use that power. Your view that corporations have no constitutional rights would upend two centuries of constitutional law. The New York Times Inc. certainly does enjoy freedom of the press. Churches appear as parties in lawsuits and enjoy protection under the Free Exercise Clause.

If you want to try to persuade the courts to redesign the entire system of First Amendment jurisprudence, be my guest. No one who knows anything about constitutional law will take you seriously.

Meanwhile, on planet earth, the question is WHAT constitutional rights corporations enjoy.

[Bill Fleming]

"The New York Times Inc."... we've been down this road before, KB. The New York Times, Inc. has never written or spoken a single word. So tiresome.

[caheidelberger]

Seems to me the reporters and the activists retain their First Amendment rights. As for suing Exxon, well, we simply redefine the corporate charter to require the company to assign culpability for various actions to specific members of the organizational chart. Or heck, let's just make the CEO or the board of directors directly and personally responsible for malfeasance. I'll bet they tighten the ship really fast.

[Ken Blanchard]

Bill: I can understand how you find reality tiresome.

Cory: yes, the reporters and activists retain their rights. Now: who pays for teh lawyers? A reporter for the Times doesn't have to worry that he will be bankrupted by a expose he writes. The Times Inc. bears the costs and the risks. As for making CEO's and boards of directors "personally responsible", okay. Now when the Sierra Club loses a suit its leaders lose their houses. That will encourage activism! You guys are utterly ignorant about the foundations of the law.

Corporations have been an integral part of economic and political life since the Middle Ages. They benefit the members of the corporations by allowing them to pool their resources and act collectively. If I give to the Sierra Club, I can trust that the money belongs to the organization, not the leaders. Corporations also benefit governments. It is much easier to regulate and assign responsibility to a corporation than to an amorphous collection of individuals.

At any rate, to abolish corporate personhood would require rewriting law in all the developed countries. It is just plain ignorant to think that that is viable.